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8 U. Toronto L.J. 208 (1949-1950)
Amendment of the British North America Acts in Relation to British Columbia, Prince Edward Island, and Newfoundland

handle is hein.journals/utlj8 and id is 216 raw text is: AMENDMENT OF THE BRITISH NORTH AMERICA ACTS IN RELATION TO BRITISH COLUMBIA, PRINCE EDWARD ISLAND, AND NEWFOUNDLAND M UCH has been written about a contract, compact, or treaty which is not subject to amendment except with the consent of the contracting parties, under which the first three British North American colonies, Canada, New Brunswick, and Nova Scotia, were united. It is not the purpose of this study to review the arguments pro and con. They have been analysed in the O'Connor Report, where both views are printed together with comments by Mr. W. F. O'Connor.' I believe it is fair to say that today, no reasonable person holds the view that what was done in 1867 produced a treaty which cannot be amended without the unanimous consent of the contracting parties or their successors, any more than it may be validly alleged either, generally, that the new provinces have succeeded to the rights, if any in this respect, of the old colonies, or, specifically, that the provinces of Ontario and Quebec succeeded to the rights of the old colony of Canada. There are difficulties as to how Ontario and Quebec as separate entities can succeed to treaty rights of one former entity, as to who are the contracting parties, as to how the Dominion, if it is alleged to be a party, can be a party to something consummated before it existed, and so on. Politicians may, for political capital, continue to make much out of the theory, even if it lacks basis in law and in fact. It may be noted, however, that in 1949, at a time when the Conservative party strongly urged delay in the abolition of appeals to the Judicial Committee of the Privy Council and strongly opposed the amendment of the British North America Act to permit amendment within Canada on purely federal matters, one of its national newspaper supporters, the Globe and Mail, editorially accepted the idea of no compact, yet vigorously supported the delay and opposition. But there is now put forward another concept, not as something new, but as something which, in the absence of the general compact theory, may partially take its place. It is argued that, whether or not there was a compact in 1867, there certainly was in the case of each of the independent colonies which subsequently entered federation. The fact that neither British Columbia, Prince Edward Island and Newfoundland nor the three provinces subsequently carved out of western territory (Manitoba, Saskatchewan and Alberta) could have been parties to the compact in 1867 did 1Report to the Senate, Canada, Relating to the Enactment of the British North America Act, 1867, etc. by W. F. O'Connor (Ottawa, 1939), annex 4, at pp. 134-52. 208

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